TMI Blog2002 (10) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted shifting of point of tax. The relevant notification is extracted as follows: "S. No. 647: F-5(118) FD/Gr. IV/71, dated December 1, 1986. S.O.131.-In pursuance of rule 15 of the Rajasthan Sales Tax Rules, 1955, and in supersession of Finance Department Notification No. F. 5(40)FDRT/63-2, dated March 23, 1963 (S. No. 53), as amended from time to time, the State Government hereby directs that with immediate effect the tax payable under section 5 of the Act on the sale of goods manufactured in Rajasthan by any manufacturer holding a certificate of registration under the Act shall be at the following points, namely: (a) When sale is made by such manufacturer to- (1) an unregistered dealer, (2) a consumer, (3) a registered de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IV) DEPARTMENT Notification Jaipur, November 20, 1991. S.O. 212.-In pursuance of rule 15 of the Rajasthan Sales Tax Rules, 1955, the State Government being of the opinion that it is expedient in the public interest so to do, hereby makes the following amendments in this Department Notification No. F. 5(118) FD/Gr. IV/71, dated December 1, 1986, namely: AMENDMENTS.-(1) In the said notification, for the existing expression "5C, 5CC or 5CCCC" in clause (b), the expression "5C or 5CC" shall be substituted. (2) At the end of the said notification the following Explanation shall be inserted, namely: "Explanation.-A dealer who is granted exemption from tax or deferment of tax under the Incentive/Deferment Schemes, shall not be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been deleted vide notification dated March 27, 1995, as a result whereof it shall be deemed to have deleted from its inception or in other words as if the Explanation dated November 20, 1991 was never inserted in the statute. The assessing officer rejected the Explanation and passed a fresh order of reassessment dated February 28, 1998. The petitioner challenged the said order of assessment before the Rajasthan Taxation Tribunal by way of an application under section 8. The application was admitted on July 21, 1998. The Tribunal also granted interim relief in favour of the petitioner. On abolition of the Rajasthan Taxation Tribunal the said original application stood transferred to this Court. As three separate applications for the respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities constituted under the statute validity of a provision of an Act or rule or even a notification and thus in such cases an alternate remedy will not be a bar for invoking the provisions of article 226 of the Constitution of India. We are buttressed, in our view by the decision of the apex Court in Kanpur Vanaspati Stores, Kanpur v. Commissioner of Sales Tax, U.P., Lucknow reported in [1973] 32 STC 655. The same view has been taken by the division Bench of this Court in Udaipur Builder Association v. State reported in 2001 (2) WLC 724. The judgment of the learned single Judge in BSL's case (S.B. Civil Writ Petition No. 651 of 2000 decided on August 25, 2000-Rajasthan High Court has not been approved by the division Bench of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been saved. 8.. In the instant case, the explanation inserted by notification dated November 20, 1991 has been deleted vide notification dated March 27, 1995 without any specific saving clause. Thus, when the assessing authority passed the reassessment order dated February 28, 1998 the Explanation inserted vide notification dated November 20, 1991 was not in existence being rubbed off or in other words in view of notification dated March 27, 1995 it became non est. Thus, the entire proceedings of re-assessment which includes the notice dated October 15, 1997 and the order of reassessment dated February 28, 1998 are wholly without jurisdiction without authority of law. 9.. Consequently, all the three special appeals are allowed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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